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The Effectiveness Of The Law Reform Process

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Assess the effectiveness of the law reform process in achieving just outcomes in regards to native title Native title is a legal right on Indigenous Australian Communities to live on and use land with which they have an ongoing association. Native title has been an issue as its difficult determining whether Australia was ‘terra nullius’ and it wasn’t the Indigenous ad to prove they have traditional links with the land. The conditions that have led to reform to the ‘terra nullius’ claim were by aboriginal activists challenging Australian sovereignty on the grounds that terra nullius was applied improperly. Mechanisms that have been put into action are the Native Title Act 1993 (Cwlth) which was enacted by the Mabo cases and the Native Title Amendment 1998 (Cwlth) by the Wik case. When the British declared Australia as ‘terra nullius’ it impacted the Indigenous Australians as land belonged to the Crown and they lost all rights to their land. It was unjust as they were the traditional owners and guardians of the land who were to use, preserve and celebrate the land for future generations.

The traditional custodians were forced to lose their land and culture and many died to new diseases brought by the Europeans. The doctrine of terra nullius meant that in the eyes of the law Indigenous Australians did not exist as citizens. Reform began to take place when the Yolngu people from the Gove Peninsula, in Eastern Arnhem Land sent a petition to the Commonwealth Government protesting the removal of land for mining without their permission. The petition failed and hence they went to the high court in 1971 and the ‘Gove land right case’ commenced. The Yolngu people lost and three years later they began protesting about poor working conditions and pay. In 1972, the Australian Labour Party established the Department of Aboriginal Affairs in response to the failure of the Gove land rights case. A royal commission into land rights was established and made the Aboriginal Land Rights Act 1976.

This is effective law reform as it was the first legislation in Australia to establish a land claim process by which traditional owners could claim land. Mabo v. Queensland (1998) was about the Queensland governor annexing the Murray islands to Queensland which made them come under its law. The Murray islanders claimed that Queensland sovereignty over the Murray Islanders was subject to the land rights of the Murray Islanders based on local custom and traditional title. They argued that the State of Queensland had no power to extinguish the Meriam people’s title. In 1985, the Queensland Government enacted the Queensland Coast Islands Declaratory Act 1985, which meant various islands around the coast of Queensland became part of Queensland and its law. Mabo claimed that a system of native title existed and that they were recognised under Australian common law and the Queensland government argued that native titles were not part of Australian law and the 1985 act extinguished any native titles.

The High Court found that the Queensland Act was trying to limit the land rights of the Torres Strait Islanders because of their race. Therefore the act was invalid and referred back to the Queensland Supreme Court for further determination on the issue of native title. This was a successful movement for native title as the Indigenous are getting a chance to overturn the concept of terra nullius. Mabo v. Queensland (1992) found that in a majority to six to one, the High court ruled that the Murray Islanders had native title rights, including the right to possess the land, occupy the islands and therefore native title existed wherever indigenous people had occupied the land prior to European Settlement. The court established guidelines for dealing with similar cases and that the federal government could take back native title rights on the condition that the traditional owners receive fair compensation. On the issue of terra nullius they stated that it was not part of Australian law. This shows effectiveness of law reform as the Australian law now recognised native title and overturned the concept of terra nullius.

The Wik peoples v. The State of Queensland (1996) was about the Wik people launching a case against the Queensland Government in the Federal Court, claiming native title rights to their traditional lands. The Federal Court ruled that once a lease has been granted on Crown land, native title rights were extinguished. The matter was taken to the High Court were a majority of four to three judges said that pastoral leases do not automatically extinguish natitle title and the Wik people should be allowed to continue with their claim. The court then found that pastoral leases could co-exist at the same time and on the same land, however if the two came into conflict, the lease would prevail. This was effective as it didn’t automatically grant native title over Crown land but it created concern amongst farmers and minders as they would be forced into slow and complex negotiations with indigenous people over access to and use of the land. The Native Title Act 1993 (Cwlth) recognised native title under the Australian common law.

This legislation creates greater rights for ATSI peoples as it allows Indigenous people to claim land where they can prove that they have maintained their traditional links with. The Aboriginal and Torres Strait Heritage Protection Act 1984 (Cwlth) made provisions for the preservation and protection of areas and objects in Australia’s land and waters that have particular traditional significance to Indigenous Australians. Aboriginal Land Rights Act 1983 (NSW) recognised Aboriginal Land rights and recognised that the past government decisions had reduced the amount of Aboriginal land without compensation. It was effective as it established the Aboriginal Land Councils in NSW, providing mechanisms for ALC members to access non aboriginal lands for the purpose of fishing, hunting or gathering.

There has been progress in the area of law reform to native title as there have been several court cases that have brought legislation all regarding land rights for the Indigenous Australians. An example is the Native Title Act 1993 and the Native Title Amendment which improves the effectiveness of the groups representing indigenous communities who made a claim. This proves that law reform regarding native title is effective but is ever growing meaning that in time new governments will further make legislation regarding native title claims.

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